3 Democrats sue over pick of Whitaker as acting attorney general

WASHINGTON -- Three Democratic senators are filing a lawsuit challenging the constitutionality of President Donald Trump's appointment of Matthew Whitaker to serve as acting attorney general in the latest move by lawmakers to protect the probe being led by special counsel Robert Mueller III.

Sens. Richard Blumenthal of Connecticut, Sheldon Whitehouse of Rhode Island and Mazie Hirono of Hawaii filed a complaint Monday in the U.S. District Court for the District of Columbia. The complaint asks the court to declare Trump's appointment of Whitaker as unconstitutional and to block him from his current role.

"Installing Matthew Whitaker so flagrantly defies constitutional law that any viewer of School House Rock would recognize it," Blumenthal said in a statement. "Americans prize a system of checks and balances, which President Trump's dictatorial appointment betrays."

In a joint release announcing the move, the senators said they are being represented in the case by the nonprofit law firms Protect Democracy and the Constitutional Accountability Center.

"President Trump is denying senators our constitutional obligation and opportunity to do our job: scrutinizing the nomination of our nation's top law enforcement official," Blumenthal said in a statement. "The reason is simple: Whitaker would never pass the advice and consent test. In selecting a so-called 'constitutional nobody' and thwarting every senator's constitutional duty, Trump leaves us no choice but to seek recourse through the courts."

Added Blumenthal, "What we are witnessing right now is a slow-motion Saturday night massacre. The strategy of the administration here seems to be to avoid the kind of firestorm that happened under Richard Nixon."

Deputy Attorney General Rod Rosenstein, the second-ranking Justice Department official, has been confirmed by the Senate and had been overseeing Mueller's Russia investigation. Whitaker is now overseeing the investigation.

"The stakes are too high to allow the president to install an unconfirmed lackey to lead the Department of Justice -- a lackey whose stated purpose, apparently, is undermining a major investigation into the president," Whitehouse said in a statement.

Trump appointed Whitaker earlier this month after forcing the resignation of Jeff Sessions as attorney general. Some Democrats have called for Whitaker to recuse himself from overseeing the special counsel investigation into Russian interference in the 2016 campaign due to his statements critical of the probe. Others, including the trio of senators who filed Monday's lawsuit, have argued that Whitaker's appointment violates the Constitution because Whitaker, who worked as Sessions's chief of staff, is not a Senate-confirmed official.

Whitaker's appointment also faces a lawsuit filed by Maryland Attorney General Brian Frosh, a Democrat, as well as a Supreme Court filing by lawyer Thomas C. Goldstein.

The Constitution's Appointments Clause requires that the Senate confirm all principal officials before they can serve in their office.

The Justice Department released a legal opinion last week that said Whitaker's appointment would not violate the clause because he is serving in an acting capacity. The opinion concluded that Whitaker, even without Senate confirmation, may serve in an acting capacity because he has been at the department for more than a year at a "sufficiently senior pay level."

The Department of Justice responded to Goldstein's Supreme Court filing in a statement on Friday in which it maintained that Trump's appointment of Whitaker is lawful and that it "comports with the Federal Vacancies Reform Act, the Appointments Clause of the U.S. Constitution, Supreme Court precedent, past Department of Justice opinions, and actions of U.S. Presidents, both Republican and Democrat."

"There are over 160 instances in American history in which non-Senate confirmed persons performed, on a temporary basis, the duties of a Senate-confirmed position," the Justice Department said in the statement. "To suggest otherwise is to ignore centuries of practice and precedent."

Many more challenges may lie ahead, said Josh Blackman, a professor of constitutional law at the South Texas College of Law in Houston.

"Because the attorney general oversees virtually every aspect of the Department of Justice, thousands of litigants throughout the country will be able to challenge his appointment," Blackman said. "Sooner or later a federal court somewhere will declare Whitaker's appointment unconstitutional. At that point, the Supreme Court will have to intervene to resolve the issue."

But Whitaker's appointment does not affect Mueller's eligibility to lead the investigation into Russian interference in the 2016 presidential election, Mueller's team said in a court filing Monday.

The special counsel's office was responding to an inquiry from the U.S. Court of Appeals for the District of Columbia Circuit in a case brought by Andrew Miller, an associate of Roger Stone, a longtime adviser to Trump.

The case challenges the constitutionality of Mueller's position and centers on who is doing what job at the Justice Department and oversight of the 18-month-long probe.

After oral arguments this month, a three-judge panel asked Mueller and Miller to address implications for the case of the forced resignation of Sessions - and the man the president picked to succeed him, Whitaker.

"The designation has no effect on the case," Mueller's team said of Whitaker's new position. "The validity of the Special Counsel's appointment" in May 2017 "cannot be retroactively affected by a change in the official who is serving as the Acting Attorney General."

Miller, the former Stone assistant, is trying to block a grand-jury subpoena from Mueller and has refused to testify.

His attorney said Monday that Whitaker's replacing Sessions does not affect Miller's argument that Mueller was named unlawfully, in violation of the appointments clause of the Constitution. The special counsel's prosecutorial powers are too broad and the office is not subject to "substantial supervision and oversight," according to Miller's lawyer Paul Kamenar.

Mueller was appointed in May 2017 by Rosenstein after Trump fired FBI Director James Comey. Rosenstein got involved because Sessions had recused himself from matters involving the campaign. Mueller's team detailed in court how Rosenstein, who was confirmed by the Senate, has directly supervised the investigation as envisioned under the special counsel guidelines.

The three-judge panel of the D.C. Circuit must answer the specific question of whether Mueller is a "principal officer," requiring appointment by the president and Senate confirmation, or an "inferior" one, who can be appointed by the head of a department. The panel is made up of Judges Karen LeCraft Henderson, Judith W. Rogers and Sri Srinivasan.

Information for this article was contributed by Felicia Sonmez and Ann E. Marimow of The Washington Post; Eric Tucker and Michael Balsamo of The Associated Press; and Andrew Harris of Bloomberg News.